RULES 52 and 53 - MOTIONS FOR RECONSIDERATION AND NEW TRIAL
WHEREFORE, the challenged decision of the Court of Appeals is AFFIRMED.
JORGE NAVARRA and CARMELITA BERNARDO NAVARRA and THE RRRC
DEVELOPMENT CORP. vs. COURT OF APPEALS and PLANTERS DEVELOPMENT
BANK
FACTS:
The petitioners and their family corporation, the RRRC Development Corporation, executed a
real estate mortgage in favor of private respondent Planters Development Bank to secure the
payment of a loan in the principal sum of P1.2M. When the petitioners failed to pay, Planters
caused the extra-judicial foreclosure of the mortgage. The sheriff issued a certificate of sale in
favor of Planters as the highest bidder. The one-year period having expired without the
petitioners exercising their right of redemption, ownership of the five parcels of land was
transferred to the private respondent.
Planters sent a letter of demand to the petitioners to vacate the premises, but the demand was
rejected. It then filed a petition for the issuance of a writ of possession and the trial court granted
said petition. The petitioners filed a motion for reconsideration but it was denied. Consequently,
petitioners filed with the CA a special civil action for certiorari alleging that the trial court
committed grave abuse of discretion amounting to lack of jurisdiction. The CA dismissed the
petition and denied the motion for reconsideration. The petitioner then came to the Supreme
Court for review under Rule 45.
The petitioners submit that the writ of possession should not have be issued because they are
already the owners of the subject property by virtue of the perfected and partially consummated
contract of sale. To prove their claim, they presented to the respondent court an exchange of
letters which the petitioners insist has established a meeting of minds between them and
Planters relative to their repurchase of the subject properties. The petitioners also ask the SC to
consider the four letters which they have attached to their petition claiming these to be newly-
discovered evidence that would substantiate their allegation.
ISSUE:
Whether or not a motion for new trial filed before the Supreme Court should be granted
RULING:
As defined, newly-discovered evidence is evidence which could not have been discovered prior to
the trial in the court below by the exercise of due diligence and which is of such character as
would probably change the result.
The decision of the respondent Court of Appeals was promulgated on September 12, 1988. On
the other hand, the letters are dated October 24, 1988, and November 12, 1988. As they were not
existing at the time the respondent court rendered its decision, and indeed prior to the trial, they
could not by any kind of diligence have been discovered at all during that period. It is clear that
they do not qualify as newly-discovered evidence under the definition as they came into
existence only after the trial.
A no less important consideration is that the Rules of Court allow only two occasions when a
party may file a motion for new trial on the ground of newly-discovered evidence. That motion
may be filed only with the trial court under Rule 37 or with Court of Appeals under Rule 53 but
never with the Supreme Court.
The Supreme Court is not a trier of facts. It is not the function of the SC to analyze or weigh all
over again the evidence already considered in proceedings below, its jurisdiction being limited to
reviewing only errors of law that may have been committed by the lower courts. Such review
does not extend to reversing the factual findings of such courts save only in the exceptional
instances which the SC have laid down in a number of decisions.
Cuenca vs. Court of Appeals
G.R. no. 109870, December 1, 1995
Facts:
On July 6, 1994, the petitioner filed a pleading entitled "SUBSTITUTION OF COUNSEL WITH
MOTION FOR LEAVE TO FILE MOTION FOR NEW TRIAL” setting forth, in relation to the
motion for new trial in view of the denial by the Court of Appeals of the petition for review of the
Court of Appeals' judgment affirming his conviction for violation of the "Trust Receipts Law"
(Presidential Decree No. 115). The Motion for New Trial shall be grounded on newly discovered
evidence and excusible (sic) negligence, and shall be supported by affidavits of:
(i) an officer of private complainant corporation who will exculpate petitioner;
(ii) an admission against interest by a former officer of the owner of Ultra Corporation
(the Corporation that employed petitioner), which actually exercised control over the
affairs of Ultra; and
(iii) the petitioner wherein he will assert innocence for the first time and explain why
he was unable to do so earlier.
The Court in its July 27, 1994 Resolution, among other things, granted the substitution but
denied the motion for leave to file motion for new trial, "the petition having been already denied
on February 9, 1994." Notwithstanding, petitioner on August 8, 1994 filed a "MOTION TO
ADMIT ATTACHED MOTION FOR NEW TRIAL", and a "MANIFESTATION AND SECOND
MOTION TO ADMIT" on August 17, 1994. The Court thereafter required the Solicitor General to
comment on said motion and manifestation within ten (10) days from notice, in a Resolution
dated September 7, 1994. In the Comment filed after three (3) extensions of time were given by
the Court, the Solicitor General himself recommends that petitioner be entitled to a new trial,
proceeding from the same impression that a certain Rodolfo Cuenca's (petitioner's brother)
sworn statement is an admission against interest which may ultimately exonerate petitioner
from criminal liability.
Issue: Whether or not the Motion for New Trial should be granted by the court
Ruling: YES.
According to the Solicitor General, ordinarily, it is too late at this stage to ask for a new trial.
However, the sworn statement of Rodolfo Cuenca is a declaration against his own interests
under Section 38, Rule 130, Revised Rules of Court and it casts doubt on the culpability of his
brother Edilberto Cuenca, the petitioner. Hence, the alleged confession of guilt should be given a
hard look by the Court. The People is inclined to allow petitioner to establish the genuineness
and due execution of his brother's affidavit in the interest of justice and fair play.
Although in "Goduco v. CA" (14 SCRA 282 [1965]) decided some twenty (20) years ago, this
Court ruled that it is not authorized to entertain a motion for reconsideration and/or new trial
predicated on allegedly newly discovered evidence the rationale of which being:
The judgment of the Court of Appeals is conclusive as to the facts, and cannot be reviewed by the
Supreme Court. Accordingly, in an appeal by certiorari to the Supreme Court, the latter has no
jurisdiction to entertain a motion for new trial on the ground of newly discovered evidence, for
only questions of fact are involved therein. The rule now appears to have been relaxed, if not
abandoned, in subsequent cases like "Helmuth, Jr. v. People" and "People v. Amparado"
In both cases, the Court, opting to brush aside technicalities and despite the opposition of the
Solicitor General, granted new trial to the convicted accused concerned on the basis of proposed
testimonies or affidavits of persons which the Court considered as newly discovered and
probably sufficient evidence to reverse the judgment of conviction. Being similarly
circumstanced, there is no nagging reason why herein petitioner should be denied the same
benefit. It becomes all the more plausible under the circumstances considering that the "People"
does not raise any objection to a new trial, for which reason the Solicitor General ought to be
specially commended for displaying once again such statesmanlike gesture of impartiality. The
Solicitor General's finest hour, indeed.
RULE 57 - PRELIMINARY ATTACHMENT
MAXIMO UY and SYLVIA VASQUEZ-UY vs. THE HON. COURT OF APPEALS, and
ROSALINDA MORENO-ANLAP
FACTS
Petitioners and private respondent entered into a contract of lease for the rental of a fishing
vessel. After the expiration of the tern in the contract petitioner failed to return the fishing vessel
and continued the use of the vessel without paying the said rental. Hence, respondent filed a
complaint against petitioners for recovery of a sum of money, return of the fishing vessel and
damages before the Regional Trial Court. After trial on the merits, a judgment was rendered
against petitioners.
Petitioners filed a notice of appeal from the aforesaid decision, while respondent filed an ex-
parte motion for writ of attachment, which was granted, and the same issued on December 19,
1989. Petitioners' ex-parte motion to discharge said writ failed. Likewise, their attempt at
securing a reversal with the Court of Appeals was a failure with the dismissal of their petition for
certiorari. Hence this Petition.
ISSUE
Whether or not evidence adduced during trial can be used for the issuance of preliminary
attachment
RULING
Pursuant to paragraphs (c) and (d) of Sec. 1, Rule 57 of the Rules of court. That to conduct a
hearing of said motion will just be a repetition in the presentation of evidence already on record.
Attachment is a provisional remedy by which the property of an adverse party is taken into legal
custody as a security for the satisfaction of any judgment that may be recovered by the plaintiff
or any proper party. It is an auxiliary remedy the granting of which lies within the sound
discretion of the judge taking cognizance of the principal case upon existence it depends. Its
purpose is to secure a contingent lien on defendant's property until plaintiff can obtain a
judgment and have such property applied to its satisfaction or to make provision for unsecured
debts in cases where the means of satisfaction thereof are liable to be removed beyond the
jurisdiction or improperly disposed of or concealed or placed beyond reach of creditors.
We find nothing in the Rules of Court which makes notice and hearing indispensible and
mandatory for the issuance of a writ of attachment. It is simply the duty of the court to ensure
that the writ is issued on concrete and specific grounds and not on general averments. Such
being the rule, there is no reason why the evidence in the main case cannot be used as basis for
issuance of a writ of attachment, more so if it was proved that the defendants unjustly detained,
improperly disposed of or concealed or placed the personal property beyond the reach of their
creditors.
DAVAO LIGHT & POWER CO., INC., v. THE COURT OF APPEALS, QUEENSLAND
HOTEL or QUEENSLAND TOURIST INN, and TEODORICO ADARNA
G.R. No. 93262; November 29, 1991
Davao Light filed a verified complaint for recovery of a sum of money and damages
against Queensland Hotel, etc. and Teodorico Adarna The complaint contained an ex parte
application for a writ of preliminary attachment. The trial court issued an order granting the ex
parte application. The summons and a copy of the complaint, as well as the writ of attachment
and a copy of the attachment bond, were served on defendants Queensland and Adarna; and
pursuant to the writ, the sheriff seized properties belonging to the latter. Defendants filed a
motion to discharge the attachment for lack of jurisdiction to issue the same because at the time
the order of attachment and the attachment writ was issued, the trial court had not yet acquired
jurisdiction over the cause and over the persons of the defendants. The trial court denied the
motion to discharge. Thereafter, the CA nullified and set aside the writ of preliminary
attachment issued by the RTC.
ISSUE: Whether or not a writ of preliminary attachment may issue ex parte against a defendant
before acquisition of jurisdiction of the latter’s person by service of summons or his voluntary
submission to the Court’s authority.
Yes. A writ of preliminary attachment may be issued before the court acquires
jurisdiction over the person of the defendant.
The court may validly issue a writ of preliminary injunction prior to the acquisition of
jurisdiction over the person of the defendant. There is an appreciable period of time between the
commencement of the action (takes place upon the filing of an initiatory pleading) and the
service of summons to the defendant. In the meanwhile, there are a number of actions which the
plaintiff or the court may validly take, including the application for and grant of the provisional
remedy of preliminary attachment. There is nothing in the law which prohibits the court from
granting the remedy prior to the acquisition of jurisdiction over the person of the defendant. In
fact, Rule 57 of the Rules of Court allows the granting of a writ of preliminary injunction at the
commencement of the suit. In the cases of Toledo v. Burgos and Filinvest Credit Corporation v.
Relova, it was held that notice and hearing are not prerequisites to the issuance of a writ of
preliminary attachment. Further, in the case of Mindanao Savings & Loan Association, Inc. v.
Court of Appeals, it was ruled that giving notice to the defendant would defeat the purpose of the
remedy by affording him or her the opportunity to dispose of his properties before the writ can
be issued.
The writ of preliminary attachment, however, even though validly issued, is not
binding upon the defendant until jurisdiction over his person is first acquired. Levy on property
pursuant to the writ thus issued may not be validly effected unless preceded, or
contemporaneously accompanied by service on the defendant of summons, a copy of the
complaint (and of the appointment of guardian ad litem, if any), the application for attachment
(if not incorporated in but submitted separately from the complaint), the order of attachment,
and the plaintiff’s attachment bond. Service of all such documents is indispensable not only for
the acquisition of jurisdiction over the person of the defendant, but also upon considerations of
fairness, to apprise the defendant of the complaint against him, of the issuance of a writ of
preliminary attachment and the grounds therefor and thus accord him the opportunity to
prevent attachment of his property by the posting of a counterbond in an amount equal to the
plaintiff’ claim in the complaint pursuant to Section 5 (or Section 12), Rule 57, or dissolving it by
causing dismissal of the complaint itself on any of the grounds set forth in Rule 16, or
demonstrating the insufficiency of the applicant’s affidavit or bond in accordance with Section
13, Rule 57.
Magdalena Estate, Inc. vs. Nieto

FACTS
Defendants Rene Nieto and Helen Garcia bought a parcel of land from the plaintiff
Magdalena Estate Inc.. The defendants made a partial payment and both parties agreed that the
remaining balance shall be paid in a monthly installment basis. However, problem occurred
when despite repeated demands by the plaintiff to the defendants, the latter still failed to comply
with their obligation to pay the remaining balance.
The plaintiff elevates the matter to the court wherein said defendants have been
declared in default. Plaintiff claims that summon could not be served personally upon the
defendants because they purposely concealed themselves to avoid service upon them.
The court allowed that service of summons upon the defendants be made through
publication in the newspaper of general circulation. Subsequently, the court rendered a
judgment in favor of the plaintiff ordering the defendants to pay the said plaintiff.
Hence the defendants filed an appeal.
ISSUE
Whether or not the court has acquired jurisdiction over the persons of the defendant
RULING
NO. It is true that in Fontanilla vs. Domingue, 73 Phil. 579, it as held that service of
summons by publication is proper in all actions without distinction, provided the defendant is
residing in the Philippines but his identity is unknown or his address cannot be ascertained.
oever, in a later case, Pantaleon vs. Asuncion, 105 Phil. 765, the Court, speaking through then
Justice Roberto Concepcion, ruled that it is a well settled principle of Constitutional Law that, in
an action strictly in personam, like the one at bar, personal service of summons, within the
forum, is essential to the acquisition of jurisdiction over the person of the defendant, ho does not
voluntarily submit himself to the authority of the court. In other words, summons by publication
cannot consistently with the due process clause in the Bill of Rights confer upon the court
jurisdiction over said defendant.
The proper recourse for a creditor in the same situation as petitioner is to locate
properties, real or personal, of the resident defendant debtor ith unknon address and cause them
to be attached under Rule 57, Section 1f, in hich case, the attachment converts the action into a
proceeding in rem or quasi in rem and the summons by publication may then accordingly be
deemed valid and effective.
Philippines Bank of Communications vs Court of Appeals
GR No. 115678, February 23, 2001
FACTS:
The case commenced with the filing petitioner, on April 8, 1991, of a Complaint
against private respondent Filipinas Textile Mills and one Sochi Villanueva (now deceased)
before Regional Trial Court of Manila. In the said Complaint, petitioner sought the payment of
P2,224,926.30 representing the proceeds or value of various textile goods, the purchase of
which was covered by irrevocable letters of credits and trust receipts executed by petitioner with
private respondent Filipinas Textile Mills as obligor; which, in turn, were covered by surety
agreements executed by private respondent Bernardino Villanueva and Sochi Villanueva. In
their Answer , private respondents admitted the existence of the surety agreements and trust
receipts but countered that they had already made payments on the amount demanded and
that the interest and other charges imposed by petitioner were onerous.
Petitioner filed a Motion for Attachment, contending that violation of the trust receipts
law constitutes estafa, thus providing ground for the issuance of a writ of preliminary
attachment ; specifically under paragraphs “b” and “d” of Section 1, Rule 57 of the Revised Rules
of Court. Petitioner further claimed that attachment was necessary since private respondents
were disposing of their properties to its detriment as a creditor. Finally, Petitioner offered to post
a bond for the issuance of preliminary attachment.
The Motion was duly opposed by private respondents and, after the filing of a Reply
thereto by petitioner, the lower court issued its August 11, 1993 Order for the issuance of a writ
of preliminary attachment bond. Following the denial of the Motion for Reconsideration filed by
private respondent Filipinas Textile Mills, both respondents filed separate petitions for certiorari
before respondent Court assailing the order granting the writ of preliminary attachment.
ISSUE: WON the lower court erred in issuing the writ of preliminary attachment.
RULING:
While the Motion refers to the transaction complained of as involving trust receipts, the violation
of the terms of which is qualified by law as constituting estafa, it does not follow that a writ of
attachment can and should be automatically issue. Petitioner cannot merely cite Section 1(b)
and (d), Rule 57, of the Revised Rules of Court, as mere reproduction of the rules, without more,
cannot serve as a good ground for issuing a writ of attachment. An order of attachment cannot be
issued on a general averment, such as one ceremoniously quoting from pertinent rule.
To sustain an attachment on this ground, it must be shown that the debtor in contracting the
debt or incurring the obligation intended to defraud the creditor. The fraud must relate to the
execution of the agreement and must have been the reason which induced the other party into
giving consent which he would not have otherwise given. To constitute a ground for attachment
in Section 1 (d), Rule 57 of the Rules of Court, fraud should be committed upon contracting the
obligation sued upon. A debt is fraudulently contracted if at the time of contracting it
the debtor has a preconceived plan or intention not to pay, as it is in this case. Fraud is
a state of mind and need not be proved by direct evidence but may be inferred from the
circumstances attendant in each case (Republic v. Gonzales, 13 SCRA 633).
We find an absence of factual allegations as to how the fraud alleged by petitioner was
committed. As correctly held by respondent Court of Appeals, such fraudulent intent not to
honor the admitted obligation cannot be inferred from the debtors inability to pay or to comply
with the obligations. On the other hand, as stressed, above, fraud may be gleaned from a
preconceived plan or intention not to pay. This does not appear to be so in the case at bar. In
fact, it is alleged by private respondents that out of the total P419,613.96 covered by the subject
trust receipts, the amount of P400,000.00 had already been paid, leaving only P19,613.96 as
balance. Hence, regardless of the arguments regarding penalty and interest, it can hardly be said
that private respondents harbored a preconceived plan or intention not to pay petitioner.
The Court of Appeals was correct, therefore, in its finding that neither petitioners Motion
or its supporting Affidavit provides sufficient basis for the issuance of the writ of attachment
prayed for.
We also agree with respondent Court of Appeals that the lower court should have
conducted a hearing and required private petitioner to substantiate its allegations of fraud,
embezzlement and misappropriation.
FOUNDATION SPECIALIST, INC. vs. BENTOVAL READY CONCRETE, INC.
GR. No. 170674, 24 August 2009
FACTS:
On separate dates, petitioner FSI and respondent Betonval executed three contracts
for the delivery of ready mixed concrete by Betonval to FSI. Betonval delivered the ready mixed
concrete pursuant to the contracts but FSI failed to pay its outstanding balance. As an
accommodation to FSI, Betonval extended the seven day credit period to 45 days.
Betonval demanded from FSI its balance. Betonval informed FSI that further defaults
would leave it no other choice but to impose the stipulated interest for late payments and take
appropriate legal action to protect its interest. While maintaining that it was still verifying the
correctness of Betonval’s claims, FSI sent Betonval a proposed schedule of payments devised
with a liability for late payments. Thereafter, FSI paid Betonval according to the terms of its
proposed schedule of payments. It was able to reduce its debt, inclusive of the annual interest.
Nevertheless, it failed to fully settle its obligation. This prompted Respondent to file an action for
sum of money and damages in the RTC. It also applied for the issuance of a writ of preliminary
attachment alleging that FSI employed fraud when it contracted with Betonval and that it was
disposing of its assets in fraud of its creditors.
FSI denied Betonval’s allegations and moved for the dismissal of the complaint. The
amount claimed was allegedly not due and demandable because they were still reconciling their
respective records. The RTC issued a writ of preliminary attachment and approved the P500,000
bond of Stronghold. FSI filed a counterbond of ₱ 500,000 thereby discharging the writ of
preliminary attachment, except with respect to FSI’s excavator, crawler crane and Isuzu pick-up
truck, which remained in custodia legis.
The RTC ruled for Betonval. However, it awarded compensatory damages to FSI on
the ground that the attachment of its properties was improper.
FSI and Stronghold separately filed MRs while Betonval filed a motion for clarification
and reconsideration. The RTC denied both Motions. All parties appealed to the CA. However,
only the respective appeals of Betonval and Stronghold were given due course because FSI’s
appeal was dismissed for non-payment of the appellate docket fees. The Court of Appeals upheld
the RTC order with modification. FSI’s Motion for Reconsideration was denied, hence this
petition for review on certiorari.
ISSUE:
Whether or not there was improper attachment of FSI’s properties?
RULING:
Yes. Betonval’s application for the issuance of the writ of preliminary attachment was
based on Section 1(d) and (e), Rule 57 of the Rules of Court. However, the CA affirmed the RTC’s
factual findings that there was improper attachment of FSI’s properties. Betonval was not able to
sufficiently show the factual circumstances of the alleged fraud because fraudulent intent cannot
be inferred from FSI’s mere non-payment of the debt or failure to comply with its obligation. The
applicant must be able to demonstrate that the debtor intended to defraud the creditor.
Furthermore, the fraud must relate to the execution of the agreement and must have
been the reason which induced the other party into giving consent which he would not have
otherwise given. To constitute a ground for attachment in Section 1 (d), Rule 57 of the Rules of
Courts, fraud should be committed upon contracting the obligation sued upon. A debt is
fraudulently contracted if at the time of contracting it the debtor has a preconceived plan or
intention not to pay, as it is in this case. Fraud is a state of mind and need not be proved by
direct evidence but may be inferred from the circumstances attendant in each case. Mere failure
to pay its debt is, of and by itself, not enough to justify an attachment of the debtor’s properties.
A fraudulent intention not to pay (or not to comply with the obligation) must be present.
Olib vs. Pastoral, G.R. No. 81120, 20 August 1990
Facts: Corazon M. Navia sued the spouses Oscar and Roberta Olib for dissolution of their
partnership and other reliefs, with a prayer for the issuance of a writ of a preliminary
attachment. The writ was granted resulting in the attachment of six parcels of land belonging to
the petitioners. This was accompanied by a certification from the bonding company that the
bond had not been renewed and the corresponding payment for extension had not been made.
The RTC rendered judgment in favor of the petitioners. Later, Navia perfected her appeal from
the judgment and the records of the case were elevated to the Court of Appeals.
The spouses Olib moved for the discharge of the writ of preliminary attachment by the
respondent court on the basis of the judgment in their favor. Navia filed an opposition,
contending that as she had perfected her appeal to the Court of Appeals, the trial court no longer
had any jurisdiction over the case.
Issue: WON the writ of preliminary attachment had been automatically discharged under Rule
57 because of the perfection of the appeal to the Court of Appeals?
Ruling: NO
Attachment is defined as a provisional remedy by which the property of an adverse party is taken
into legal custody, either at the commencement of an action or at any time thereafter, as a
security for the satisfaction of any judgment that may be recovered by the plaintiff or any
property. Attachment is an auxiliary remedy and cannot have an independent existence apart
from the main suit or claim instituted by the plaintiff against the defendant. Being merely
ancillary to a principal proceeding, the attachment must fail if the suit itself cannot be
maintained as the purpose of the writ can no longer be justified.
Where the main action is appealed, the attachment which may have been issued as an incident of
that action, is also considered appealed and so also removed from the jurisdiction of the court a
quo. The attachment cannot be the subject of a separate case independent of the principal action
because the attachment was only an incident of such action.
Finally, on the correct interpretation of Rule 57, Section 19, of the Rules of Court, we hold that
the order of attachment is considered discharged only where the judgment has already become
final and executory and not when it is still on appeal. The obvious reason is that, expect in a few
specified cases, execution pending appeal is not allowed.
BRO. BERNARD OCA, FSC, BRO. DENNIS MAGBANUA, FSC, MRS. CIRILA
MOJICA, MRS. JOSEFINA PASCUAL AND ST. FRANCIS SCHOOL OF GENERAL
TRIAS, CAVITE, INC., PETITIONER, VS. LAURITA CUSTODIO, RESPONDENT.
G.R. No. 174996, December 03, 2014
FACTS: Before the Court is a petition for review under Rule 45 of the 1997 Rules of Civil
Procedure.
Petitioner St. Francis School of General Trias Cavite, Inc. (School) was organized and established
as a non-stock and non-profit educational institution. The organization and establishment of the
school was accomplished through the assistance of the La Salle Brothers without any formal
agreement with the School. To formalize the relationship between the De La Salle Greenhills
(DLSG) and the School, a Memorandum of Agreement (MOA) was executed. This agreement
permitted DLSG to exercise supervisory powers over the School’s academic affairs. Pursuant to
the terms of the MOA, DLSG appointed supervisors who sit in the meetings of the Board of
Trustees without any voting rights. Then, on September 8, 1998, petitioner Bro. Bernard Oca
joined Bro. Franco as DLSG supervisor.
Petitioners declare that the membership of the DLSG Brothers in the Board of Trustee[s] as its
officers was valid since an election was conducted to that effect.
On the other hand, Custodio challenges the validity of the membership of the DLSG Brothers
and their purported election as officers of the School. The legality of the membership and
election of the DLSG Brothers is the main issue of the case in the lower court. Soon after,
Custodio was removed from her post, prompting her to file a Complaint with Prayer for the
Issuance of a Preliminary Injunction against petitioners again assailing the legality of the
membership of the Board of Trustees of St. Francis School.

The RTC Ruled in favor of Custodio and issued a status quo order thereby allowing Custodio
to continue discharging her functions as school director and curriculum administrator as well as
those who are presently and actually discharging functions as school officer to continue
performing their duties until the application for the issuance of a temporary restraining order is
resolved.
Herein Petitioners filed a petition for certiorari under Rule 65 before the CA, with application
for the issuance of a temporary restraining order and/or writ of preliminary injunction to nullify,
for having been issued with grave abuse of discretion amounting to lack or in excess of
jurisdiction to which the CA dismissed.
ISSUE: Whether or not the trial court committed grave abuse of discretion in issuing the
assailed Orders dated August 5, 2003, August 21, 2003 and October 8,
2003.
HELD: NO. There exists no grave abuse of discretion on the part of the trial court.
The Court ruled that petitioners were not denied due process by the trial court when it issued the
assailed Orders dated August 5, 2003, August 21, 2003 and October 8, 2003. The records would
show that petitioners were given the opportunity to ventilate their arguments through pleadings
and that the same pleadings were acknowledged in the text of the questioned rulings. Thus,
petitioners cannot claim grave abuse of discretion on the part of the trial court on the basis of
denial of due process.
HOWEVER, with respect to the assailed Status Quo Order dated August 21, 2003, the Court
ruled that the trial court has failed to comply with the pertinent procedural rules regarding the
issuance of a status quo order.
A status quo order is merely intended to maintain the last, actual, peaceable and uncontested
state of things which preceded the controversy. Unlike a temporary restraining order or a
preliminary injunction, a status quo order is more in the nature of a cease and desist order, since
it neither directs the doing or undoing of acts as in the case of prohibitory or mandatory
injunctive relief.
The trial court’s August 21, 2003 Status Quo Order conflicted with the rules and jurisprudence in
the following manner:
1) The directive to reinstate respondent to her former position as school director and
curriculum administrator is a command directing the undoing of an act already consummated
which is the exclusive province of prohibitory or mandatory injunctive relief and not of a
status quo order which is limited only to maintaining the last, actual, peaceable and uncontested
state of things which immediately preceded the controversy.
2) The trial court’s omission of not requiring respondent to file a bond before the
issuance of the Status Quo Order dated August 21, 2003 is in contravention with the express
instruction of Section 1, Rule 10 of the Interim Rules of Procedure for Intra-Corporate
Controversies. The subsequent order to post a bond as indicated in the assailed did not cure this
defect because a careful reading of the nature and purpose of the bond would reveal that it was
meant by the trial court as security solely for the teachers’ retirement fund, the possession of
which was given by the trial court to respondent and Reynante. It was never intended and can
never be considered as the requisite security, in compliance with the express directive of
procedural law, for the assailed Status Quo Order.
3) It is settled in jurisprudence that an application for a status quo order which in fact
seeks injunctive relief must comply with Section 4, Rule 58 of the Rules of Court: i.e., the
application must be verified aside from the posting of the requisite bond. In the present case, the
Manifestation and Motion, through which respondent applied for injunctive relief or in the
alternative a status quo order, was merely signed by her counsel and was unverified.
In conclusion, the Court ruled that no grave abuse of discretion was present in the
issuance of the assailed August 5, 2003 and October 8, 2003 Orders of the trial court. However,
the issuance of the assailed August 21, 2003 Status Quo Order was unwarranted
RULE 58—PRELIMINARY INJUNCTION
Paras vs. Judge Roura, Atty. Pulgar, and Diosdado Carreon, deputy sheriff. [A.C. No.
3180. June 29, 1988.]
Facts: This is an administrative case against the respondent Judge Roura who rendered a
decision against the driver of the Philippine Rabbit Bus who was guilty of the crime of damage to
property with multiple serious physical injuries through reckless imprudence. The Decision
became final and executory and a Writ of Execution was issued against Oscar G. Tiglao.
However, the Writ of Execution was returned unsatisfied, which resulted to the issuance of
Subsidiary Writ of Execution against Philippine Rabbit, the employer of Tiglao. Respondent
Sheriff Carreon levied upon an Isuzu bus of Philippine Rabbit, with body No. 239. Respondent
Sheriff Carreon issued a Notice of Sale of Philippine Rabbit Bus No. 239 and scheduled the
public auction sale.
The Philippine Rabbit filed a petition for certiorari, impleading the herein respondents and
prayed for Preliminary Injunction, which was granted by the CA on March 3 1987, enjoining the
enforcement of Writ of Preliminary Injunction.
After 20-days effectivity of the Injunction, the sheriff proceeds with the sale of the said bus,
acting upon the request of del Rosario who was entitled to the proceeds of the sale.
Issue: Whether or not, the respondents are administratively liable for implementing the sale
despite the injunction issued on March 3, 1987.
Ruling:
No, the respondents are not liable. the Temporary Restraining Order of 3 March 1987 of the
Court of Appeals had already lapsed when Deputy Sheriff Carreon implemented anew on 14 April
1987 the Subsidiary Writ of Execution and Atty. Pulgar's act of requesting in writing the Deputy
Sheriff to proceed with the Notice of Sale upon expiration of the twenty-day period, was strictly
in accordance with law.
"Section 8. Preliminary injunction not granted without notice; issuance of restraining order. —
No preliminary injunction shall be granted without notice to the defendant. If it shall appear
from the facts shown by affidavits or by the verified complaint that a great or irreparable injury
would result to the applicant before the matter can be heard on notice, the judge to whom the
application for preliminary injunction was made, may issue a restraining order to be effective
only for a period of twenty-days from date of its issuance. Within said twenty-day period, the
court must cause an order to be served on the defendant, requiring him to show cause, at a
specified time and place, why the injunction should not be granted, and shall accordingly issue
the corresponding order. In the event that the application for preliminary injunction is denied,
the restraining order is deemed automatically vacated."
Further, it was held that the expiration of 20-day period of the Temporary Restraining Order,
applies to all Injunction issued by the inferior courts, including those issued by the Court of
Appeals.
Dela Paz vs. Adiong, 443 SCRA 480, November 23, 2004
Pacasum College, Inc., filed with the RTC of Marawi City , a petition for mandamus with
application for a preliminary mandatory injunction, against Fund for Assistance to Private
Education (FAPE), whereinpetitioner is OIC. Respondent judge issued an order granting the
perition. FAPE through counsel,filed an omnibus motion to set aside orders and to dismiss the
case claiming that it was not served with summon; that the writ of preliminary mandatory
injunction which was intended to be enforced in an area outside the jurisdiction RTC Marawi
City
In his letter-complaint, dela Paz claims as follows: Respondents issuance of the writ of
preliminary mandatory injunction was in glaring disregard and defiance of Section 21 of B.P. Blg.
129 which limits the authority of RTCs to issue writs of mandamus within their respective
regions. The issuance of the writ was in disregard of the notice and hearing requirements under
Rule 58 of the Rules of Court.
Issue: Whether or not respondent judge is guilty of gross ignorance of law and grave abuse of
authority in issuing the WPI.
Ruling.
Yes.
The rule on injunction as found under Rule 58 of the Rules of Court provides that the
same can only be granted upon a verified application showing facts entitling the applicant to the
relief demanded and upon the filing of a bond executed to the party or person enjoined. It is also
provided that no preliminary injunction shall be granted without hearing and prior notice to the
party or person sought to be enjoined unless shown that great or irreparable injury would result
to the applicant before the matter can be heard on notice; that a temporary restraining order
may be issued effective for a period of twenty (20) days from service on the party sought to be
enjoined.
The authority of a judge to issue a writ of injunction is limited only to and operative
only within his province or district and any such writ issued in contravention of such limitation
is void.
Respondent’s court is in Marawi City which falls within the twelfth judicial region. The
writ of preliminary mandatory injunction issued by respondent requiring FAPE, which is holding
office in Makati City, and its officials who have their residences in Metro Manila, to issue a check
in the amount of P4,000,000.00 payable to Datu Saripada Ali Pacasum, is outside the territorial
jurisdiction of respondent’s court. Thus, the writ of preliminary mandatory injunction issued by
the respondent is void considering that his authority to issue an injunction is limited only to and
operative only within his respective provinces or districts. Consequently, the Order dated March
5, 2002 directing the sheriff of Makati and Mandaluyong to serve the writ of preliminary
mandatory injunction to FAPE, et al. is a jurisdictional faux pas as the respondent can only
enforce his orders within the territorial jurisdiction of his court.
Golden Gate Realty Corp vs IAC
G.R. 74289
Facts: This is an ejectment case coupled with the question on the writ of preliminary injuction
wherein the petitioner has questioned via certiorari – it has pointed out that the respondent
court erred in sustaining the order of the trial court: (a) extending the efficacy of the restraining
order; (b) holding that it can issue a final injunction based on evidence presented for the
issuance of a preliminary injunction and before the hearing of the trial on the merits.
Petitioner contends that the twenty (20)-day period of efficacy of a temporary restraining order
is non-extendible and the courts have no discretion to extend the same, otherwise the life of such
provisional remedy would be only permissive and not mandatory as intended by the rule.
Issue: The efficacy of a TRO; period is non-extendable.
Ruling: It is non-extendable. The respondent court erred in extending the period of the
temporary restraining order for another ten (10) days in order to give itself more time to decide
on the propriety of the issuance of a writ of preliminary injunction. The said court should not
have permanently enjoined the sheriff from conducting an auction sale and more importantly, it
should not have annulled the proceedings in Civil Code No. 13439 altogether because by doing
so, the said court preempted itself from conducting any further trial on the merits of the case. It
went beyond the extent of the relief that the called for hearing may grant, and that is, the
issuance of a preliminary injunction.
As ruled, a temporary restraining order has a limited life of twenty (20) days: a judge may issue a
temporary restraining order with a limited life of twenty (20) days from date of issue. If before
the expiration of the 20-day period the application for preliminary injunction is denied, the
temporary restraining order would thereby be deemed automatically vacated. If no action is
taken by the judge on the application for preliminary injunction within the said 20-days the
temporary restraining order would automatically expire on the 20th day by the sheer force of
law, no judicial declaration to that effect being necessary. A temporary restraining order can no
longer exist indefinitely for it has become truly temporary.
MIRANDA vs. SUPREME COURT et al.
[G.R. No. 140130, October 26, 1999]
FACTS:
Petitioner has impleaded as respondents in the instant petition the Supreme Court En
Banc, the Executive Secretary, and the Secretary of Interior and Local Government. He seeks
injunction against the implementation of the final and executory decision dated July 28, 1998
and the resolution of September 28, 1999 denying reconsideration in G.R. No. 136351 entitled
"Joel G. Miranda vs. Antonio Abaya and the Commission and the Commission of Elections."
ISSUE:
Whether or not the Supreme Court be sued before itself, in the guise of seeking to
declare its judgments, resolutions, or orders unconstitutional?
HELD:
No.
1. The remedy sought by petitioner is not sanctioned by the Rules.
All incidents relating to a case submitted before the Court must be threshed out in the
same case, and not in an independent original action. Filing a separate action is tantamount to
forum shopping. In fact, petitioner may even be held liable for his false certification of non-
forum shopping (pages 9-10 of the petition) and the petition upon premise, may be forthwith
dismissed.
2. Then too, other than the annulment of judgments or final orders and resolutions (of
courts below the Court of Appeals only) under Rule 47 of the rules of Court, a final and executory
judgment can, generally, not be questioned at anytime and before any forum after attaining such
finality. Final judgments must be enforced, they are no longer open to question. "Finality of
decision of courts is not dependent upon their correctness, but upon the expiration of the period
fixed by the rules therefore" (Feria vs. Suva, 92 Phil. 963 [1953]). "The very purpose for which
the courts are organized is to put an end to controversy, to decide the questions submitted by the
litigants, and to determine the respective rights of the parties. With full knowledge that courts
are not infallible, the litigants submit their respective claims for judgment, and they have a right
at some time or the other to have final judgment on which they can rely as a final disposition of
the issues submitted, and know that there is an end to the litigation." (Miranda vs. Court of
Appeals, 71 SCRA 295 [1976]). An original action such as the present petition is nowhere to be
found among the remedies available to petitioner as a losing party in G.R. No. 136351.

3. The instant original petition questioning this Court's final and executory decision
G.R. No. 136351 is an attempt to circumvent the proscription against a second motion for
reconsideration. Section 2, Rule 56 makes Section 2, Rule 52 of the Rules of Court applicable to
cases filed before the Supreme Court. Thus,
Sec. 2. Second motion for reconsideration.- No second motion for reconsideration of a
judgment or final resolution by the same party shall be entertained.
The prohibition against the filing of a second motion for reconsideration is justified by
public policy which demands that at the, risk of occasional errors, judgments of courts must
become final at some definitive date fixed by law (Government Service Insurance System vs.
Court of Appeals, 266 SCRA 187 [1997]).
4. Injunction cannot be issued by this Court against itself. It would be the height of
absurdity to expect this Court, or any court for that matter, to issue a provisional or preliminary
remedy against itself. The Court is asked to stand as the judge and the respondent at one and the
same instance. Surely, no one can be a judge in its own acts without being charged with
incompetence, bias, and partiality. Insisting on this would result in the violation of the very
fundamental principles of judicial due process of law. Petitions such as this must never be
allowed to prosper.
In point of fact, the only complaint or grumble of petitioner is that his motion for
reconsideration in G.R. No. 136351 was denied in a minute resolution. If only to write finis to
this matter, it must be said that this Court has time and again upheld the constitutionality of
resolutions denying motions for reconsideration on the ground that basic issues have already
been passed upon by the Court and that no substantial arguments were presented to warrant a
reversal of the decision. Petitioner himself in Paragraph 22 of his petition says that he is aware of
such principle. Clearly, the instant petition is nothing but an attempt to delay execution of our
judgment in G.R. No. 136351.
Universal Motors v. Judge Rojas, A.M. No. RTJ-03-1814, 26 May 2005
FACTS:
Complainant UMC is the exclusive assembler and distributor in the Philippines of Nissan light
commercial vehicles and spare parts. In the pursuit of its business, it maintains a network of
authorized dealers who purchase vehicles and spare parts from UMC and resell them in specified
territories in the country. One of complainants’ dealers was Nissan Specialist Sales Corporation
(NSSC) covering Misamis Oriental and other provinces and cities in northern Mindanao,
including Cagayan De Oro City. NSSC ordered from complainant Nissan vehicles and spare parts
worth P5,476,500.00. NSSC issued several postdated checks in favor of complainant to pay for
the purchases. The checks, however, were dishonored due to insufficient funds. Complainant
demanded payment from NSSC but the latter repeatedly failed to comply. Hence, complainant
stopped transacting with NSSC, although the latter still remained as dealer.
Complainant later appointed Nissan Cagayan De Oro Distributors, Inc. (NICAD) to co-exist as
dealer with NSSC to meet the market demand in Northern Mindanao. Because of NSSCs
continued failure and refusal to pay its obligation, complainant terminated its dealership
agreement with NSSC.
NSSC thereafter filed a Civil Case for breach of contract against complainant and its
officers. Respondent judge then issued an order setting a summary hearing on March 7, 2002 on
the propriety of the issuance of a temporary restraining order. And granted the TRO for a period
of 20 days without requiring private respondent to issue any bond at all notwithstanding Rule
58, Section 4 (b) of the Rules of Court,
NSSC filed with the trial court a Motion to Enforce Writ of Preliminary Injunction. Complainant,
on the other hand, filed a Manifestation and Motion to Cancel or Hold Proceedings in Abeyance.
Respondent judge resolved both motions, granting NSSCs Motion to Enforce Writ of Preliminary
Injunction.
Complainant filed with the Court of Appeals a Petition for Certiorari and Prohibition assailing
the preliminary injunction issued by respondent judge.
ISSUE:
WON Judge Rojas is liable for serious misconduct, gross ignorance of the law and grave abuse of
discretion.
RULING:
YES. Under Section 5, Rule 58 of the 1997 Rules of Civil Procedure, a temporary restraining
order may be issued only if it appears from the facts shown by affidavits or by the
verified application that great or irreparable injury would result to the applicant
before the writ of preliminary injunction could be heard. The relief sought by NSSC in
the original complaint consisted mainly of its reinstatement as dealer of Nissan vehicles and
spare parts in Northern Mindanao, and the termination of the dealership agreement between
UMC and NICAD. NSSC did not allege facts to support an urgent need to issue a temporary
restraining order to prevent any great or irreparable injury that it might suffer while the
preliminary injunction is being heard. In one case, the Court penalized a judge who awarded
reliefs to plaintiffs without any showing that such reliefs were applied for.
Also, respondent judge issued the temporary restraining order without requiring the plaintiff to
post a bond. Sec. 4, Rule 58 of the 1997 Rules of Civil Procedure states:
Sec. 4. Verified application and bond for preliminary injunction or temporary
restraining order. A preliminary injunction or temporary restraining order may be granted
only when:
(a) The application in the action or proceeding is verified, and shows facts entitling the applicant
to the relief demanded; and
(b) Unless exempted by the court, the applicant files with the court where the action
or proceeding is pending, a bond executed to the party or person enjoined, in an
amount to be fixed by the court, to the effect that the applicant will pay to such
party or person all damages which he may sustain by reason of the injunction or
temporary restraining order if the court should finally decide that the applicant
was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary
injunction shall be issued.
xxx
The bond under Rule 58 is intended to pay all the damages which the party or person against
whom the temporary restraining order or injunction is issued may sustain by reason thereof
should the court finally decide that the applicant was not entitled thereto.
In the case at bar, the errors committed by the respondent were not honest mistakes in the
performance of his duties. There was no urgency nor any irreparable injury which would require
the issuance of a Temporary Restraining Order and/or Preliminary Injunction in favor of the
plaintiffs.
As a matter of public policy, not every error or mistake of a judge in the performance of his
official duties renders him liable. In the absence of fraud, dishonesty or corruption, the acts of a
judge in his official capacity do not always constitute misconduct although said acts may be
erroneous.
FIRST GLOBAL REALTY AND DEVELOPMENT CORPORATION (FGDC), vs.
CHRISTOPHER SAN AGUSTIN, G.R. No. 144499, February 19, 2002, Third
Division, Panganiban, J.
FACTS:
The petition stemmed from a case where a subject property, which is a parcel of land including a
house thereon and issued in the name of herein respondent, San Agustin , was sold to spouses
Camacho for the amount of P2.5 million pesos, net of capital gains tax, documentary stamp tax,
transfer taxes and the remaining balance of the petitioner FGDC’s loan with DBP. Respondent
then executed a deed of sale in favor of spouses Camacho, who in turn paid respondent the
amount of P100,000.00 pesos. It appeared that FGRD, granted spouses Camacho’s loan
application with the subject property as collateral, in the amount of P1.190 million. Spouses
Camacho failed to pay the balance of the purchase price in spite demand from the petitioner.
Subsequently, respondents filed a criminal complaint for estafa against spouses Camacho, which
did not prosper because the spouses Camacho could not be located for the proper service of the
warrant of arrest, while FGRDC filed a special civil action for the foreclosure of the subject
property which was granted by the RTC. The sale of the subject property at public auction was,
nevertheless, thrust aside in view of the dacion en pago which spouses Camacho executed in
favor of FGRDC and a TCT was issued in favour of the latter. Respondent filed a separate
complaint for rescission of the deed of absolute sale, annulment of the dacion en pago and
cancellation of title and issuance of a new title with prayer for the issuance of a temporary
restraining order and/or a writ of injunction against FGRDC, seeking to enjoin the latter from
taking possession of the subject property. The RTC denied the application of respondent for a
preliminary injunction to prevent petitioner from evicting him from the subject property while
the CA reversed the RTC decision and granted the injunctive relief prayed for by respondent.
ISSUE/S:
Whether or not respondent is entitled to the possession of the property while the main case for
rescission is pending in the RTC
RULING:
YES. The petitioner failed to show a clear right to possess the property and to dispossess the
respondent pendente lite would be clearly unjust. Section 3 of Rule 58 of the Rules of Court
enumerates the grounds for the issuance of a writ of preliminary injunction, the purpose of
which is to prevent threatened or continuous irremediable injury to some of the parties before
their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo
until the merits of the case can be heard fully. Thus, it will be issued only upon a showing of a
clear and unmistakable right that is violated. Moreover, an urgent and permanent necessity for
its issuance must be shown by the applicant. In the present case, the status quo that is sought to
be preserved is the possession of the property by respondent and his right to use it as his
dwelling, pending determination of whether or not he had indeed sold it to the Camachos and,
consequently, whether the latter’s transfer of its ownership to petitioner via dacion en pago
should be upheld. Furthermore, there is no question that respondent has been in possession of
the premises for a long tim -- prior to and during the institution of the Complaint. He and his
family have long owned, possessed and occupied it as their family home since 1967. To
dispossess him of it now would definitely alter the status quo to their detriment.
Borromeo vs. CA
FACTS:
Petitioners were client-depositors of EPCIB for more than 12 years. Petitioners alleged
that sometime in mid-1999, the branch manager of EPCIB, J.P. Rizal Branch, offered a loan to
the petitioners under its Own-a-Home Loan Program. It was in the early part of 2000 that
petitioners signed blank loan documents consisting of the Loan Agreement, Promissory Notes, a
Real Estate Mortgage (REM) and Disclosure Statements.
To secure the payment of the loan, petitioners executed an REM over their land.
Petitioners asserted that even if the loan documents were signed in blank, it was understood that
they executed the REM in favor of EPCIB.
From April 2001 to September 2002, respondent released a total amount of
P3,600,000.00 in four installments, while the balance of P400,000.00 was not drawn by
petitioners. On the other hand, petitioners started to pay their monthly amortizations.
Petitioners made repeated verbal requests to EPCIB to furnish them their copies of the
loan documents
When the petitioners failed to pay for the loan in full by 30 September 2003,
respondent sought to extra-judicially foreclose the REM.
On 20 November 2003, petitioners filed with the RTC a Complaint for Injunction,
Annulment of Mortgage with Damages and with Prayer for Temporary Restraining Order and
Preliminary and Mandatory Injunction against EPCIB and respondent.
On 3 March 2004, the RTC granted petitioners motion for reconsideration and
ordered the issuance of a preliminary injunction after declaring that the validity of the REM was
yet to be determined.
Respondent filed a Motion for Reconsideration of the afore-quoted Order, which was
denied for lack of merit by the RTC in an Order dated 29 April 2004.
In reversing the RTC Order dated 3 March 2004, the Court of Appeals decreed that
pending the RTCs determination of the validity of the REM, its validity should be presumed.
ISSUE:
WHETHER OR NOT THE LOWER COURT WAS CORRECT IN GRANTING THE
WRIT OF PRELIMINARY INJUNCTION, ALL REQUISITES BEING PRESENT.
HELD:
The petition is meritorious.
The only issue that needs to be determined in this case is whether or not a writ of
preliminary injunction should be issued to enjoin the foreclosure and public auction of
petitioner’s property during the proceedings and pending determination of the main cause of
action for annulment of the REM on said property. By no means is this a final determination of
the merits of the main case still before the RTC.
Section 3, Rule 58 of the Rules of Court provides that:
SEC. 3. Grounds for issuance of preliminary injunctions. A preliminary
injunction may be granted when it is established:
(a) That the applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the act or acts complained
of, or in requiring the performance of an act or acts, either for a limited period or perpetually;
(b) That the commission, continuance or non-performance of the act or acts
complained of during the litigation would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing, threatening, or is attempting to
do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of
the applicant respecting the subject of the action or proceeding, and tending to render the
judgment ineffectual.
As such, a writ of preliminary injunction may be issued only upon clear showing of an
actual existing right to be protected during the pendency of the principal action. The twin
requirements of a valid injunction are the existence of a right and its actual or threatened
violations. Thus, to be entitled to an injunctive writ, the right to be protected and the violation
against that right must be shown.
In this case, petitioner’s rights to their property is restricted by the REM they executed
over it. Upon their default on the mortgage debt, the right to foreclose the property would be
vested upon the creditor-mortgagee. Nevertheless, the right of foreclosure cannot be exercised
against the petitioners by any person other than the creditor-mortgagee or its assigns.
Sps. Yap v. International Exchange Bank, G.R. No. 175145, 28 March 2008

Facts:
Respondent International Exchange Bank filed a collection suit with application for the issuance
of a writ of preliminary attachment against Alberto Looyuko and Jimmy T. Go in the RTC of
Makati. The trial court rendered a Decision in favor of respondent iBank and found Alberto
Looyuko and Jimmy T. Go liable, ordering them to pay the amount of ninety-six million pesos
(P96,000,000.00), plus penalty.
Herein petitioner-spouses Alfredo and Shirley Yap filed a Complaint for Injunction with Prayer
for Temporary Restraining Order and/or Preliminary Injunction with the RTC of Pasig City.
Petitioners sought to stop the auction sale alleging that the some of properties involved in the
public auction are already owned by them by virtue of Deeds of Absolute Sale executed by Jimmy
Go in their favor. They further alleged that respondent sheriff disregarded their right over the
properties despite their execution of an Affidavit of Adverse Claim to prove their claim over the
properties and the publication of a Notice to the Public warning that various deeds had already
been issued in their favor evidencing their right over the same.
The RTC of Pasig City, issued an Order denying petitioners' application for a writ of preliminary
injunction. The public auction took place for which sheriff issued a Certificate of Sale stating that
the subject properties had been sold at public auction in favor of respondent iBank, subject to
the third-party claims of petitioners.
Petitioners filed with the RTC of Pasig City a case for Annulment of Sheriff's Auction Sale
Proceedings and Certificate of Sale against iBank, the Clerk of Court and Ex-Officio Sheriff of
RTC Makati City, and Sheriff Flora. The Complaint was amended to include a prayer for the
issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction.
Respondents filed an Omnibus Motion (Motion to Refer the Complaint to the Office of the Clerk
of Court for Raffle in the Presence of Adverse Party and Motion to Dismiss). The court denied
the Omnibus Motion for lack of merit. Respondents iBank and Sheriff Flora filed a Motion for
Reconsideration.
A hearing was held on the application for preliminary injunction and an order was issued by the
judge granting petitioners' application for issuance of a writ of preliminary injunction.
Upon posting a bond in the amount of three million pesos (P3,000,000.00), the judge issued the
Writ of Preliminary Injunction.
Respondents filed a Motion for Reconsideration of the order granting the Writ of Preliminary
Injunction which the trial court denied.
With the denial of their Motion for Reconsideration, respondents filed with the Court of Appeals
a Petition for Certiorari, Prohibition and Mandamus with prayer for issuance of Temporary
Restraining Order and/or Preliminary Injunction. The Court of Appeals dismissed the Petition.
Respondents iBank and Sheriff Flora thereafter filed with this Court a Petition for Certiorari
which we dismissed. The Court Resolves to DISMISS the petition for being a wrong remedy
under the Rules and evidently used as a substitute for the lost remedy of appeal under Rule 45 of
the 1997 Rules of Civil Procedure, as amended. Besides, even if treated as a petition under Rule
65 of the said Rules, the same would be dismissed for failure to sufficiently show that the
questioned judgment is tainted with grave abuse of discretion.
Accordingly, an Entry of Judgment was issued by the Supreme Court certifying that the
resolution dismissing the case had become final and executory.
Subsequently, respondents filed with the RTC of Pasig City, an Omnibus Motion (To Resolve
Motion to Dismiss Complaint and/or Dissolve Injunction) praying that their pending Motion for
Reconsideration dated which seeks for the dismissal of the case be resolved and/or the Writ of
Preliminary Injunction previously issued be dissolved.
Petitioners filed their Comment thereon with Motion to Cite in Contempt the counsel of
respondents.
The trial court recalled and dissolved the Writ of Preliminary Injunction, and ordered
respondents to post a counter-bond amounting to ten million pesos. It directed the Branch Clerk
of Court to issue a Writ Dissolving Preliminary Injunction upon the filing and approval of the
required counter-bond.
Petitioners filed a Petition for Certiorari before the Court of Appeals asking that the trial court's
Order be set aside.
The Court of Appeals resolved to dismiss outright the Petition for Certiorari for failure of
petitioners to file a motion for reconsideration of the Order. The Motion for Reconsideration
filed by petitioners was denied.
Petitioners argue that the trial court abused its discretion when it ordered the dissolution of the
Writ of Preliminary Injunction, the propriety of its issuance having been affirmed by both the
Court of Appeals and the Supreme Court. There being an Order by this Court that the injunction
issued by the trial court was not tainted with grave abuse of discretion, the dissolution of said
writ is a clear defiance of this Court's directive.
Issue/s:
1. May the trial court recall and dissolve the preliminary injunction it issued despite the rulings
of the Court of Appeals and by this Court that its issuance was not tainted with grave abuse of
discretion?
2. WON Petitioner’s contention is correct.
Ruling:
The trial court may still order the dissolution of the preliminary injunction it previously issued.
We do not agree with petitioners' argument that the trial court may no longer dissolve the
preliminary injunction because this Court previously ruled that its issuance was not tainted with
grave abuse of discretion.
The issuance of a preliminary injunction is different from its dissolution. Its issuance is governed
by Section 3, 38 Rule 58 of the 1997 Rules of Civil Procedure while the grounds for its dissolution
are contained in Section 6, Rule 58 of the 1997 Rules of Civil Procedure. As long as the party
seeking the dissolution of the preliminary injunction can prove the presence of any of the
grounds for its dissolution, same may be dissolved notwithstanding that this Court previously
ruled that its issuance was not tainted with grave abuse of discretion.
Under Sec 6 of Rule 58, a preliminary injunction may be dissolved if it appears after hearing that
although the applicant is entitled to the injunction or restraining order, the issuance or
continuance thereof, as the case may be, would cause irreparable damage to the party or person
enjoined while the applicant can be fully compensated for such damages as he may suffer, and
the former files a bond in an amount fixed by the court on condition that he will pay all damages
which the applicant may suffer by the denial or the dissolution of the injunction or restraining
order. Two conditions must concur: first, the court in the exercise of its discretion, finds that the
continuance of the injunction would cause great damage to the defendant, while the plaintiff can
be fully compensated for such damages as he may suffer; second, the defendant files a counter-
bond.
In the case at bar, the trial court, after hearing, found that respondents duly showed that they
would suffer great and irreparable injury if the injunction shall continue to exist. As to the
second condition, the trial court likewise found that respondents were willing to post a counter-
bond which could cover the damages that petitioners may suffer in case the judgment turns out
to be adverse to them. The Order of the trial court to recall and dissolve the preliminary
injunction is subject to the filing and approval of the counter-bond that it ordered. Failure to
post the required counter-bond will necessarily lead to the non-dissolution of the preliminary
injunction. The Order of Dissolution cannot be implemented until and unless the required
counter-bond has been posted.
The well-known rule is that the matter of issuance of a writ of preliminary injunction is
addressed to the sound judicial discretion of the trial court, and its action shall not be disturbed
on appeal unless it is demonstrated that it acted without jurisdiction or in excess of jurisdiction
or, otherwise, in grave abuse of discretion. By the same token, the court that issued such a
preliminary relief may recall or dissolve the writ as the circumstances may warrant. In the case
on hand, the trial court issued the order of dissolution on a ground provided for by the Rules of
Court. The same being in accordance with the rules, we find no reason to disturb the same.
Petitioners' contention is untenable.
The rule is well settled that the filing of a motion for reconsideration is an indispensable
condition to the filing of a special civil action for certiorari. It must be stressed that a petition for
certiorari is an extraordinary remedy and should be filed only as a last resort. The filing of a
motion for reconsideration is intended to afford the trial court an opportunity to correct any
actual error attributed to it by way of re-examination of the legal and factual issues. By their
failure to file a motion for reconsideration, they deprived the trial court of the opportunity to
rectify any error it committed, if there was any.
Petitioners' argument that they filed the Petition for Certiorari without filing a motion for
reconsideration because there is no appeal, or any plain, speedy and adequate remedy in the
course of law except via a Petition for Certiorari does not convince. We have held that the "plain"
and "adequate remedy" referred to in Section 1, Rule 65 of the Rules of Court is a motion for
reconsideration of the assailed Order or Resolution. The mere allegation that there is "no appeal,
or any plain, speedy and adequate remedy" is not one of the exceptions to the rule that a motion
for reconsideration is a sine qua non before a petition for certiorari may be filed.
SPOUSES DEMOCRITO AND OLICIA LAGO v. JUDGE GODOFREDO B. ABUL, JR.
A.M. No. RTJ-10-2255, 17 January 2011.
FACTS:
Respondent is the Presiding Judge of Regional Trial Court, Branch 4 in Butuan City, who was
charged with gross ignorance of the law for the following: (1) assuming jurisdiction over a case
without the mandated raffle and notification and service of summons to the adverse party and
issuing a temporary restraining order (TRO); (2) setting the case for summary hearing beyond
the 72-hour required by the law in order to determine whether the TRO could be extended; and
(3) issuing a writ of preliminary injunction without prior notice to the complainants and without
hearing. Respondent filed for a motion for reconsideration of the Court’s Decision finding him
guilty and imposing upon him a fine.
First, Judge Abul stresses that contrary to the allegations of the complainants, the Clerk of Court
conducted a raffle of the case in question, as evidenced by the letter by the Clerk of Court in the
RTC of Misamis Oriental. He explained that he issued the 72-hour TRO pursuant to the 2nd
paragraph of Section 5, Rule 58 of the Rules in order to avoid injustice and irreparable damage
on the part of the plaintiff.
Second, Judge Abul admits not conducting a summary hearing before the expiration of the 72
hours from the issuance of the ex parte TRO to determine whether it could be extended. He
explained, however, that the holding of the summary hearing within 72 hours from the issuance
of the TRO was not possible because the law office of the plaintiff’s counsel was 144 kilometers
away from Gingoog City and under that situation, the service of the notice could only be made on
the following day. Hence, it would have been impractical to set the hearing on the same date
when they would receive the service of summons.
Finally, as to the third charge, Judge Abul belies the same by submitting a certified true copy of
the Sheriff’s Return of Service stating that he actually served the summons on the complainants
together with the copy of the 72-hour TRO; and a certified machine copy of the summons
bearing the signature of complainant Democrito that he personally received the same.
ISSUE:
Whether or not the respondent is guilty of gross ignorance of the law.
HELD:
NO. With respect to the issues regarding the raffle, the lack of notice and hearing prior to the
issuance of the writ of preliminary injunction, the Court is satisfied with the explanation of
Judge Abul as it is substantiated by the official records on file.
As to the issue on the delay in conducting the summary hearing for purposes of extending the 72-
hour TRO, the Court finds the reasons advanced by Judge Abul to be well-taken. Though the
Rules require the presiding judge to conduct a summary hearing before the expiration of the 72
hours, it could not, however, be complied with because of the remoteness and inaccessibility of
the trial court from the parties’ addresses. The trial court cannot proceed with the summary
hearing without giving all parties the opportunity to be heard.
It is a settled doctrine that not every error or mistake that a judge commits in the performance of
his duties renders him liable, unless he is shown to have acted in bad faith or with deliberate
intent to do an injustice. In this case, complainants failed to show that Judge Abul was motivated
by bad faith, ill will or malicious motive when he granted the TRO and preliminary injunction.
Complainants did not adduce any proof to show that impropriety and bias attended the actions
of the respondent judge.
Nerwin Industries Corporation vs. PNOC-Energy Development Corporation, 669
SCRA 173, G.R. No. 167057 April 11, 2012
Facts: In 1999, National Electrification Administration (NEA) published an invitation to pre-
qualify and to bid for a contract known as IPB No. 80 for the supply and delivery of about
60,000 pieces of wood poles and 20,000 of cross-arms. Nerwin was one of the bidders The
contract was awarded to him being the lowest bidder. However, NEA’s board of directors passed
a resolution reducing by 50% the material requirements for IPB 80 to which Nerwin protested. A
losing bidder, Tri State and Pacific Synergy filed a complaint alleging the documents Nerwin
submitted during the pre-qualification bid were falsified. Finding a way to nullify the bid, NEA
sought the opinion of Gov’t Corporate Counsel who upheld the eligibility of Nerwin. NEA
allegedly held negotiations with other bidders for IPB 80 contract. As a result, Nerwin filed a
complaint with prayer of injunction which was grabted by RTC Manila. PNOC – Energy Dev’t
Corp issued an invitation to pre-qualify and bid for O-ILAW project. Nerwin filed a civil action in
RTC alleging that it was an attempt to subject portions of IPB 80 to another bidding. He prayed
for TRO to enjoin respondents to the proposed bidding. Respondents averred that this is in
violation of a rule that government infrastructure are not subject to TROs. RTC granted TRO
nevertheless. CA ruled in favor of respondents. Hence, this petition.
Issue: WON CA erred in dismissing the case pursuant to RA 8975 which prohibits issuance of
TRO except SC to government projects
Ruling: No, the CA should be affirmed. Sec 3 of RA 8975 clearly prohibits issuance of TRO,
preliminary injunctions, and preliminary mandatory injunctions against government. A
preliminary injunction is an order granted at any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court, agency or person, to refrain from a
particular act or acts. It is an ancillary or preventive remedy resorted to by a litigant to protect or
preserve his rights or interests during the pendency of the case. As such, it is issued only when it
is established that: (a) The applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the act or acts complained
of, or in requiring the performance of an act or acts, either for a limited period or perpetually; or
(b) The commission, continuance or non-performance of the act or acts complained of during
the litigation would probably work injustice to the applicant; or (c) A party, court, agency or a
person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some
act or acts probably in violation of the rights of the applicant respecting the subject of the action
or proceeding, and tending to render the judgment ineffectual.
Judges dealing with applications for the injunctive relief ought to be wary of improvidently or
unwarrantedly issuing TROs or writs of injunction that tend to dispose of the merits without or
before trial. Granting an application for the relief in disregard of that tendency is judicially
impermissible, for it is never the function of a TRO or preliminary injunction to determine the
merits of a case, or to decide controverted facts. It is but a preventive remedy whose only mission
is to prevent threatened wrong, further injury, and irreparable harm or injustice until the rights
of the parties can be settled. Judges should thus look at such relief only as a means to protect the
ability of their courts to render a meaningful decision. Foremost in their minds should be to
guard against a change of circumstances that will hamper or prevent the granting of proper
reliefs after a trial on the merits. It is well worth remembering that the writ of preliminary
injunction should issue only to prevent the threatened continuous and irremediable injury to the
applicant before the claim can be justly and thoroughly studied and adjudicated.
RALPH P. TUA, Petitioner, vs.HON. CESAR A. MANGROBANG, Presiding Judge,
Branch 22, Regional Trial Court, Imus, Cavite; and ROSSANA HONRADO-TUA,
Respondents.
FACTS:
Respondent and petitioner were married on January 10, 1998 in Makati City. They have three
childrenRespondent claimed, among others, that: there was a time when petitioner went to her
room and cocked his gun and pointed the barrel of his gun to his head as he wanted to convince
her not to proceed with the legal separation case she filed; she hid her fears although she was
scared; there was also an instance when petitioner fed her children with the fried chicken that
her youngest daughter had chewed and spat out; in order to stop his child from crying, petitioner
would threaten him with a belt; when she told petitioner that she felt unsafe and insecure with
the latter's presence and asked him to stop coming to the house as often as he wanted or she
would apply for a protection order, petitioner got furious and threatened her of withholding his
financial support and even held her by the nape and pushed her to lie flat on the bed; and, on
May 4, 2005, while she was at work, petitioner with companions went to her new home and
forcibly took the children and refused to give them back to her. Respondent thus filed a Petition
for the issuance of a protection order, pursuant to Republic Act (RA) 9262 or the Anti-Violence
Against Women and their Children Act of 2004, against her husband, petitioner. The Petition
was for herself and in behalf of her minor children. The RTC issued ex parte a Temporary
Protection Order (TPO). Petitioner assailed the constitutionality of RA 9262 and sought to lift
the TPO. Without awaiting the resolution of the RTC on the foregoing, Petitioner filed a petition
for certiorari with the CA assailing the TPO issued for violating the due process clause of the
Constitution.
ISSUE:
Is Section 15 of RA 9262, allowing ex parte application of a TPO, constitutional?
RULING:
Yes. The Supreme Court was also not persuaded as to the allegation of an invalid legislative
power to the court and to barangay officials to issue protection orders. The high court said that
the court is authorized to issue a TPO on the date of the filing of the application after ex parte
determination that there is basis for the issuance thereof. Ex parte means that the respondent
need not be notified or be present in the hearing for the issuance of the TPO. Thus, it is within
the court’s discretion, based on the petition and the affidavit attached thereto, to determine that
the violent acts against women and their children for the issuance of a TPO have been
committed.The violent acts which the court use for its basis are those enumerated in Section 5 of
R.A. 9262 (Acts of Violence Against Women and Their Children). In this case, petitioners actions
would fall under the enumeration of the said portion of the law and these are enough for the
issuance of a TPO.
RULE 59 - RECEIVERSHIP
PILAR M. NORMANDY, in her own behalf and of others similarly situated, as well
as of the World War II Veterans Enterprises, Inc., & LORENZO B. CAMINS,
plaintiffs-appellees, vs. CALIXTO DUQUE, CLARO P. LIZARDO, FLORENCIO
SELGA, ALBERTO RAMOS, MANUEL BUENAFE & FILIPINAS MERCHANDISING
CORPORATION, defendants-appellees, JOSE COCHINGYAN, SR. and SUSANA
CoCHINGYAN, intervenors-appellees, vs. RAMON E. SAURA, former first receiver-
appellant.Case Nature : APPEAL from an order of the Court of First Instance of
Manila. Arca, J.
Facts:
Appellant Saura in this case serve as a receiver of the WARVETS (appellees). During his term, by
authority of the court, appellant went to japan for purposes of checking on the reported under
valuation of goods. The expenses incurred by him during the trip amounted to 9,431.48 as
reimbursement which was then granted by the court in its order. Except for this reimbursement
amount, appellant received no other fee or compensation from the WARVETS. In fact, for a
continuous period of three (3) years, he performed his duties as receiver. Without receiving any
compensation as such.
Hence, he prayed before the court to be reimbursed for the amount of 10,000 as compensation
which was then granted by the court upon his discharge on service as receiver.
In some time,appellant filed another motion for reimbursement, this time for the amount the
allegedly paid as compensation of a clerk whom he employed when he was still a receiver
amounting to 5,236. However, the lower court denied it in the appealed order. Hence this
petition.
Ruling:
A receiver is a representative of the court appointed for the purpose of preserving and conserving
the property in litigation and prevent its possible destruction or dissipation, if it were left in the
possession of any of the parties. The receiver is not the representative of any of the parties but of
all of them to the end that their interests may be equally protected with the least possible
inconvenience and expense. It is inherent in the office of receiver not only that he should act at
all times with the diligence and prudence of a good father of a family but should also not incur
any obligation or expenditure without leave of the court and it is the responsibility of the court to
supervise the receiver and see to it that he adheres to the above standard of his trust and limits
the expenses of the receivership to the minimum.
Where the receiver employed a clerk and advanced his salary without leave of court, the receiver
is estopped from claiming reimbursement.
VIVARES v. REYES, G.R. No. 155408, 13 Feb. 2008
FACTS:
Severino Reyes was the father of respondent Jose Reyes and Torcuato Reyes. Upon the
death of Severino, respondent and Torcuato came upon their inheritance consisting of several
properties. They had an oral partition of the properties and separately appropriated to
themselves said properties. On May 12, 1992, Torcuato died with a last will and testament
executed on January 3, 1992. In Reyes v. Court of Appeals, the Court affirmed the November 29,
1995 CA Decision, admitting the will for probate. Petitioner Vivares was the designated executor
of Torcuatos last will and testament, while petitioner Ignaling was declared a lawful heir of
Torcuato.
Believing that Torcuato did not receive his full share in the estate of Severino,
petitioners instituted an action for Partition and Recovery of Real Estate before the Camiguin
RTC, Branch 28 entitled Julio A. Vivares, as executor of the estate of Torcuato J. Reyes and
Mila R. Ignaling, as heir v. Engr. Jose J. Reyes and docketed as Civil Case No. 517. With the
approval of the trial court, the parties agreed that properties from the estate of Severino, which
were already transferred in the names of respondent and Torcuato prior to the latters death on
May 12, 1992, shall be excluded from litigation. In short, what was being contested were the
properties that were still in the name of Severino.
The trial court directed the formation of a three-man commission with due
representation from both parties, and the third member, appointed by the trial court, shall act as
chairperson. The disputed properties were then annotated with notices of lis pendens upon the
instance of petitioners.
Petitioners filed a Motion to Place Properties in Litigation under Receivership before
the trial court. Petitioners prayed to place the entire disputed estate of Severino under
receivership. They nominated a certain Lope Salantin to be appointed as receiver. Respondent
filed his Opposition to Place the Estate of Severino Reyes under Receivership. The trial court
issued an Order granting petitioners motion and appointed Salantin as receiver conditioned on
the filing of a PhP 50,000 bond. Respondent filed a motion for reconsideration, contending that
the appointment of a receiver was unduly precipitate considering that he was not represented by
counsel and thus was deprived of due process.
Respondent filed a Manifestation with Motion to Discharge Receiver praying for the
discharge of the receiver upon the filing of a counter-bond in an amount to be fixed by the court
in accordance with Section 3, Rule 59 of the 1997 Revised Rules on Civil Procedure. Petitioners
filed their undated Opposition to Motion to Discharge Receiver. Respondent filed a Motion to
Cancel Notice of Lis Pendens which was annotated on Tax Declaration (TD) No. 112 covering Lot
No. 33 allegedly belonging exclusively to him. Petitioners filed their Opposition to the Motion to
Cancel Lis Pendens.
The trial court issued a Resolution denying respondents motions to discharge receiver
and cancel the notice of lis pendens. Respondent seasonably filed a partial motion for
reconsideration. The trial court heard respondents motion for partial reconsideration, and on
the same date issued an Order denying the motion for partial reconsideration on the ground that
respondent failed to raise new matters in the motion but merely reiterated the arguments raised
in previous pleadings. Aggrieved, respondent filed a Petition for Certiorari before the CA,
assailing the May 22, 2001 Resolution and October 19, 2001 Order of the RTC. CA rendered the
assailed Decision, sustaining respondents position and granted relief.
ISSUES:
Whether or not the annotation of a Notice of Lis Pendens precludes the
Appointment of a Receiver when there is a need to safeguard the properties in
litigation.
Whether or not a duly appointed Receiver of properties in litigation should
be discharged simply because the adverse party offers to post a bond.
Whether or not the cancellation of a Notice of Lis Pendens annotated on Tax
Declaration No. 112 is contrary to law.
RULING:
Receivership is not justified.
1. The Court sustained the CA’s ruling that the trial court acted arbitrarily in granting the
petition for appointment of a receiver as there was no sufficient cause or reason to justify
placing the disputed properties under receivership. Petitioners position is bereft of any factual
mooring. Indeed, receivership is a harsh remedy to be granted only in extreme situations. As
early as 1914, the Court already enunciated the doctrinal pronouncement in Velasco & Co. v.
Gochuico & Co. that courts must use utmost circumspection in allowing receivership, thus:
The power to appoint a receiver is a delicate one and should be exercised
with extreme caution and only under circumstances requiring summary
relief or where the court is satisfied that there is imminent danger of loss,
lest the injury thereby caused be far greater than the injury sought to be
averted. The court should consider the consequences to all of the parties and
the power should not be exercised when it is likely to produce irreparable
injustice or injury to private rights or the facts demonstrate that the
appointment will injure the interests of others whose rights are entitled to as
much consideration from the court as those of the complainant.
2. Based on Sec. 3, Rule 59 of the 1997 Rules of Civil Procedure, which reads:
Sec. 3. Denial of application or discharge of receiver. The application may
be denied, or the receiver discharged, when the adverse party files a bond
executed to the applicant, in an amount to be fixed by the court, to the effect
that such party will pay the applicant all damages he may suffer by reason of
the acts, omissions, or other matter specified in the application as ground
for such appointment. The receiver may also be discharged if it is shown
that his appointment was obtained without sufficient cause.
Anchored on this rule, the trial court should have dispensed with the services of the receiver,
more so considering that the alleged fraud put forward to justify the receivership was not at all
established. The rule states that the application may be denied or the receiver discharged. In
statutory construction, the word may has always been construed as permissive. If the intent is to
make it mandatory or ministerial for the trial court to order the recall of the receiver upon the
offer to post a counterbond, then the court should have used the word shall.Thus, the trial court
has to consider the posting of the counterbond in addition to other reasons presented by the
offeror why the receivership has to be set aside.
3. Since a notice of lis pendens has been annotated on the titles of the disputed properties,
the rights of petitioners are amply safeguarded and preserved since there can be no risk of losing
the property or any part of it as a result of any conveyance of the land or any encumbrance that
may be made thereon posterior to the filing of the notice of lis pendens. Once the annotation is
made, any subsequent conveyance of the lot by the respondent would be subject to the outcome
of the litigation since the fact that the properties are under custodia legis is made known to all
and sundry by operation of law. Hence, there is no need for a receiver to look after the disputed
properties. It is true that the notice alone will not preclude the transfer of the property pendente
lite, for the title to be issued to the transferee will merely carry the annotation that the lot is
under litigation. Hence, the notice of lis pendens, by itself, may not be the most convenient and
feasible means of preserving or administering the property in litigation. However, the situation
is different in the case at bar. A counterbond will also be posted by the respondent to answer for
all damages petitioners may suffer by reason of any transfer of the disputed properties in the
future. As a matter of fact, petitioners can also ask for the issuance of an injunctive writ to
foreclose any transfer, mortgage, or encumbrance on the disputed properties. These
considerations, plus the finding that the appointment of the receiver was without sufficient
cause, have demonstrated the vulnerability of petitioners postulation.
The respondent has actual possession over some of the disputed properties which are entitled to
protection. Between the possessor of a subject property and the party asserting contrary rights to
the properties, the former is accorded better rights. In litigation, except for exceptional and
extreme cases, the possessor ought not to be deprived of possession over subject property.
Article 539 of the New Civil Code provides that every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be protected in or restored to said
possession by the means established by the laws and the Rules of Court. In Descallar v. Court of
Appeals, the Court ruled that the appointment of a receiver is not proper where the rights of the
parties, one of whom is in possession of the property, are still to be determined by the trial court.
The cancellation of the notice of lis pendens on TD No. 112 is irregular as Lot No. 33 is one of the
disputed properties in the partition case, petitioners position is correct.
The Petition was PARTLY GRANTED. The Resolution of the Regional Trial Court of
Camiguin, was reversed and set aside. The court-appointed receiver, Lope Salantin, was
discharged upon the posting by petitioner of a counterbond. The notice of lis pendens
remains valid and effective. The case was remanded to the court a quo for further
proceedings.
CENTRAL SAWMILLS, INC. vs. ALTO SURETY & INSURANCE CO.
FACTS:
A decision was rendered in favor of plaintiff and against the defendants, jointly and solidarily. A
writ of execution was issued to enforce said judgment but it was returned unsatisfied by the
sheriff.
On August 4, 1958, the Insurance Commissioner wrote a letter addressed to Alto Surety &
Insurance Co., Inc. stating that the examination disclosed that the company had, as of December
31, 1957, total admitted assets of P715,689.29, as against total liabilities of P645,096.94 and
capital paid-up of P259,700.00 which was impaired in the amount of P189,097.65. Compliance
with their letter of July 18, 1958, regarding the covering of said impairment is reiterated and its
failure to comply with all the foregoing requirements within the time limit set forth will compel
them to suspend or revoke the certificates of authority to do insurance business issued in favor of
the company.
The plaintiff filed the present petition for receivership in view of the return of the Sheriff of
Manila to the effect that the writ of execution could not be satisfied.
ISSUE:
Whether or not, in an action for the collection of a debt, where there is already a final and
executory judgment, the Court has the authority to appoint a receiver of the properties of the
judgment debtor which are not involved in the action, in aid of the execution of said judgment
RULING:
YES. Section 1 (d) of Rule 61 [now Section 1(c) of Rule 59] is not applicable here because all the
cases of receivers contemplated in said section are only cases wherein the properties being
placed under receivership are those involved in the very litigation in which such receivership is
ordered. This is evident from the opening paragraph of said section which says that “one or more
receivers of the property, real or personal, which is the subject of the action, may be appointed ...
in the following cases.” In other words, this qualifying clause, “the property, real or personal,
which is the subject of the action” applies to all the cases specified in Section 1.
It is undisputed that in the case at bar, the properties being placed under receivership are not
the subject of the action. The provision applicable to the circumstances of the case at bar is
Section 39 (now Section 41) of Rule 39 and not Rule 61 (now Rule 59) of the Rules of Court. Said
section provides:
SEC. 39. Appointment and bond of receiver. — The judge may, by order, appoint the
sheriff, or other proper officer or person, receiver of the property of the judgment
debtor; and he may also, by order, forbid the transfer or other disposition of, or any
interference with, the property of the judgment debtor not exempt from execution. If a
bonded officer be appointed receiver, he and his sureties shall be liable on his official
bond as such receiver but if another person be appointed he shall give a bond as
receiver as in other cases.
*[Section 41. Appointment of receiver. — The court may appoint a receiver of the
property of the judgment obligor; and it may also forbid a transfer or other disposition
of, or any interference with, the property of the judgment obligor not exempt from
execution.] -1997 Rules of Civil Procedure
It is unnecessary or superfluous to bring in Rule 61 (now Rule 59), which is of doubtful
applicability, when Section 39 (now Section 41) appears to be clearly and fittingly applicable. If
at all, the other provisions of Rule 61 (now Rule 59), may be resorted to only insofar as they
prescribe the procedure and the bond related to the carrying out of such receivership.
WHEREFORE, with the above clarification that Section 39 (now Section 41) of Rule 39 is the
provision applicable to the receivership herein in question, the same being in aid for money, the
disputed orders of the court a quo are hereby affirmed.
Descallar vs. Court of Appeals
G.R. no. 106473, July 12, 1993
Facts:
Assailed in this Petition for Review on Certiorari is the decision dated July 19, 1992 of the Court
of Appeals, granting the respondent’s petition for receivership and denying the petitioner’s
motion for reconsideration thereof.
On August 1, 1991, the respondent realtor, Camilo Borromeo, filed a civil action against the
petitioner for the recovery of 3 parcels of land and the house built thereon in possession of the
petitioner and registered in her name under TCT nos. 24790, 24791, and 24792 of the Registry of
Deeds of Mandaue. Borromeo alleged that he purchased the property from Wihelm Jambrich, an
Australian national and former lover of the petitioner for many years until he left her for another
woman. In her answer, the petitioner alleged that the property belongs to her as she is the
registered owner thereof; that Borromeo’s vendor, Wihelm Jambrich is an Austrian, hence, not
qualified to acquire or own real properties in the Philippines. He has no title, right or interest
which he may transfer to the respondent.
On March 5, 1992, the respondent asked the trial court to appoint a receiver for the
property during the pendency of the case. Despite the petitioner’s opposition, the judge granted
the application for receveirship and appointed her clerk of court as receiver. The petitioner filed
a motion for reconsideration but was denied by the court. Hence, this petition.
Issue: Whether the trial court gravely abused its discretion in appointing a receiver for real
property registered in the name of the petitioner in order to transfer its possession from the
petitioner to the court-appointed receiver
Ruling: YES.
The order of receivership tainted with grave abuse of discretion. The appointment of a receiver is
not proper where the rights of the parties (one of whom is in possession of the property), are still
to be determined by the trial court. Relief by way of receivership is equitable in nature, and a
court of equity will not ordinarily appoint a receiver where the rights of the parties depend on the
determination of adverse claims of legal title to real property and one party is in possession.
(Calo, et al. vs. Roldan, 76 Phil., 445). Only when the property is in danger of being materially
injured or lost, as by the prospective foreclosure of a mortgage thereon for non-payment of the
mortgage loans despite the considerable income derived from the property, or if portions thereof
are being occupied by third persons claiming adverse title thereto, may the appointment of a
receiver be justified (Motoomul vs. Arrieta, 8 SCRA 172).
In this case, there is no showing that grave or irremediable damage may result to respondent
Borromeo unless a receiver is appointed. The property in question is real property, hence, it is
neither perishable or consummable. Even though it is mortgaged to a third person, there is no
evidence that payment of the mortgage obligation is being neglected. In any event, the private
respondent's rights and interests, may be adequately protected during the pendency of the case
by causing his adverse claim to be annotated on the petitioner's certificates of title.
Another flaw in the order of receivership is that the person whom the trial judge appointed as
receiver is her own clerk of court. This practice has been frowned upon by this Court:
The respondent judge committed grave abuse of discretion in connection with the appointment
of a receiver. The instant case is similar to Paranete vs. Tan, 87 Phil. 678 (1950) so that what
was there said can well apply to the actuations of the respondent judge. "We hold that the
respondent judge has acted in excess of his jurisdiction when he issued the order above adverted
to. That order, in effect, made the clerk of court a sort of a receiver charged with the duty of
receiving the proceeds of sale and the harvest of every year during the pendency of the case with
the disadvantage that the clerk of court has not filed any bond to guarantee the faithful discharge
of his duties as depositary; and considering that in actions involving title real property, the
appointment of a receiver cannot be entertained because its effect would be to take the
property out of the possession of the defendant, except in extreme cases when there is clear
proof of its necessity to save the plaintiff from grave and irremediable loss of damage, it is
evident that the action of the respondent judge is unwarranted and unfair to the defendants.
operation and control of the ice plant. The receiver took possession of the ice plant in the
afternoon of Sept. 27, 1958, from the defendants in said civil case No. 4994 and not from the
petitioner. It was only on October 8, 1958, that petitioner filed his motion, in said case, praying
that the respondent receiver be restrained from interfering with the possession and Control of
the ice plant, because he said he was a lessee. As things stand in the record, before the
respondent Court, there was no evidence at all, showing that the petitioner had been in the
actual possession and control of the ice plant. As a matter of fact an issue before that court is
whether or not the intervenor had ever been in possession of the ice plant or its properties.
Neither is there evidence in said case that respondent-receiver took over the operation and
control of the said ice plant. There were allegations on the part of petitioner that he was already
in possession of the ice plant, when the respondent-receiver forcibly took it over, which the latter
denied, by asserting also that it was delivered to him, voluntarily, without objection on the part
of anyone. Having thus submitted himself to the jurisdiction of the respondent court by his
intervention, petitioner necessarily became a party to civil case No. 4994. He must lay his cards
before the said court, for adjudication and determination. "After the appointment of a receiver,
claimants of the property or any interest therein may enforce their claims only by permission of
the court appointing the receiver. Such a claimant may be made party to the suit in order to
establish his claim; or he may petition to have it heard before a master; or he may, by express
permission of the court, bring a suit for the possession, care being taken to protect the receiver.
But a receiver will not be ordered to deliver the property to a claimant until his right is
established in one of these modes.

During the pendency of this appeal, Judge Dadole rendered a decision in Civil Case No. MAN-
1148 upholding Borromeo's claim to Descallar's property, annulling the latter's TCTs Nos. 24790,
24791 and 24792 and ordering the Register of Deeds of Mandaue City to issue new ones in the
name of Borromeo. This circumstance does not retroactively validate the receivership until the
decision (presumably now pending appeal) shall have attained finality.

NATALIO VENTOSA vs. HON. WENCESLAO L. FERNAN, Judge of the Court of

First Instance of Iloilo, C. N. HODGES, RICARDO GUTTEA and JOSE DINEROS, as
Receiver of the La Paz lee Plant & Cold Storage Co., Inc.

FACTS:
On January 6, 1958, of the stockholders of the La Paz Ice Plant and Cold Storage Co., Inc. A
corporation authorized to manufacture and sell ice, in Iloilo City, its franchise, factory and
equipments and the premises were leased to petitioner Natalio Ventosa. The formal document of
lease was executed on January 31, 1958 and duly ratified before Notary Public Pedrito A.
Gianzon, and approved in a resolution by the Board of Directors of the said company. The
contract of lease was further approved by the Public Service Commission on May 2, 1958. On
February 4, 1958, Ventosa allegedly took possession of the leased premises, including the factory
and equipment and operated the same, of such lessee. On September 24, 1958, respondent C. N.
Hodges and Ricardo Gurrea filed an action in the CFI of Iloilo against Manuel Lezama, as
President and Paquita B. Lezama, as Secretary of the corporation praying, among others, for the
appointment ex-parte of a receiver for the properties of the corporation. Respondent Jose
Dineros was appointed receiver and took possession of the plant. Benjamin Borja was then, the
one in charge of the factory, as manager, having been allegedly appointed as such by Ventosa.

ISSUE:
Whether or not the petitioner was in possession of the properties of the corporation prior to and
the time the respondent-receiver herein took possession the same.

HELD:
Yes. One fact stands in bold relief from the evidence of record, and that is, at the time the
petitioner had intervened in the civil case No. 4994, the receiver was already in possession,